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Federal appeals court rules saying ‘fuck you’ to the police is free speech

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Illustration by Blair Gauntt

Yelling “fuck you” at a police officer is an act of free speech protected by the U.S. Constitution, a federal appeals court ruled on Monday. “As protected speech, it should be free from retaliatory government actions,” the Eighth Circuit Court of Appeals declared in a case from Arkansas.

The U.S. Circuit Court of Appeals for the Eighth Circuit covers Iowa, as well Arkansas, Minnesota, Nebraska, North Dakota and South Dakota, and its rulings are binding in all those states.

The court’s decision came in an appeal of a lawsuit filed by Eric Thurairajah, who was arrested in Fort Smith, Arkansas, in 2015, after he yelled “fuck you” at state trooper he was driving past. At the time, Trooper Lagarian Cross was conducting a traffic stop.

According to the court, “Trooper Cross ended the traffic stop of the van and pursued Thurairajah, stopped him, and arrested him, citing Arkansas’s disorderly conduct law.” The trooper claimed Thurairajah’s shout constituted “unreasonable or excessive noise,” and therefore violated the law.

“Thurairajah spent several hours in jail but then was released and all charges against him were dropped,” the court wrote.

Thurairajah filed a lawsuit, claiming the arrest had violated his rights. The state of Arkansas wanted the case to be dismissed, asserting that Trooper Cross was legitimately performing his duties, and therefore had “qualified immunity” and could not be sued for the arrest.

A federal district court had already ruled that the qualified immunity normally enjoyed by law enforcement officers doesn’t apply in cases where an officer appears to have violated the Constitution, so Thurairajah’s lawsuit could proceed. The appeals court affirmed that decision, saying Cross’ action violated both Thurairajah’s First and Fourth Amendment rights.

Thurairajah’s shout was unamplified and fleeting, no crowd gathered because of it, city traffic was not affected, no complaints were lodged by anyone in the community, business was not interrupted, nor were an officer’s orders disobeyed. Thurairajah’s conduct may have been offensive, but it was not an unreasonable or excessive noise. Trooper Cross lacked even arguable probable cause for an arrest and thus violated Thurairajah’s Fourth Amendment right to be free from unreasonable seizure.

Last month, the ACLU of Iowa filed a federal lawsuit on behalf of Jon Goldsmith, who was arrested by sheriff’s deputies in Adams County in southwest Iowa, after he wrote a Facebook post calling a deputy a “fucking pile of shit” and “STUPID sum bitch.”

Goldsmith was charged with third-degree harassment, which could have resulted in him being jailed for 30 days and fined $625. In October, a state court judge dismissed the charges against Goldsmith, citing the free speech guarantees in both the U.S. and Iowa constitutions.

The ACLU’s lawsuit seeks a declaratory judgement that Goldsmith’s constitutional rights were violated when he was arrested, as well as an order requiring the members of the Adams County Sheriff Office to undergo training about First Amendment freedoms. The lawsuit also seeks unspecified compensatory and punitive damages.

Adams County law enforcement have a pattern of arresting people who insult officers, according to the lawsuit.

“Government officials don’t get to take offense by somebody’s words alone. They have to take that criticism,” Des Moines attorney Glen Downey, who is serving as co-counsel in Goldsmith’s case, said during the May 21 press conference announcing the lawsuit. “That’s a long-established principle, this isn’t anything new. This is something we keep having to remind them of, because they keep forgetting.”

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